Introduction
In 2021 and 2022, the number of people crossing the English Channel in small boats to seek asylum significantly increased (Migration Observatory 2024). In response to this, the UK Government’s longstanding hostility towards people seeking asylum became even more pronounced. The Home Secretary, Priti Patel, referred to people seeking asylum as “economic migrants” who were coming to the UK “illegally” (Taylor and Syal 2021). The subsequent Home Secretary, Suella Braverman, stoked fears about the increasing number of people crossing the English Channel, suggesting that England was being “inva[ded]” by people seeking asylum and asserting: “by some counts there are 100 million people around the world who could qualify for protection under our current laws” (Braverman 2023; see also Sky News 2022b). The Minister for Immigration, Robert Jenrick, used racialized language to stigmatize people seeking asylum, claiming that people crossing the Channel had “completely different lifestyles and values to those in the UK … undermining the [UK’s] cultural cohesiveness” (Syal 2023b). The inflammatory rhetoric of politicians fuelled anti-migrant sentiment in society (Hope not Hate 2023); protests were held outside of hotels accommodating asylum seekers (Taylor 2023), and a processing centre in Dover was targeted in a firebomb attack (Moloney 2022).
These racialized and exclusionary logics were replicated in the UK’s immigration policy. Only a limited number of nationalities were able to seek protection in the UK through state-sanctioned routes (Home Office 2023b). Individuals who travelled to the UK irregularly were subjected to a highly punitive regime of control, which included being threatened with removal to Rwanda and housed in performatively cruel accommodation arrangements (see, e.g. Syal 2022b; Allegretti 2023). The Government asserted that its migration policies were humanitarian and designed to “save lives” (Explanatory Note, Illegal Migration Bill 2023: 3). However, rather than “saving lives”, the operative goal that underpinned the UK’s approach to asylum seekers could be more accurately described as making it as difficult as possible for people to travel to the UK and receive asylum. Ultimately, for many people seeking asylum, the UK’s operative policy was one of exclusion.
Law and lawyers functioned as obstacles to this operative policy of exclusion. Legal challenges forced the Government to abandon multiple policies, including its plans to send people to Rwanda (Syal 2022a; Taylor, Syal and Sinmaz 2022; Casciani and Seddon 2023). In response, Government rhetoric attacked law and lawyers for frustrating the state’s migration control efforts. Government ministers portrayed legal safeguards as a “pull factor” for irregular migration and asserted that human rights protections were being exploited by economic migrants masquerading as refugees (Griffiths and Trebilcock 2023). Lawyers were derided as “activist” and “lefty” (Syal 2023a), and politicians equated lawyers with criminals: Jenrick (2023a) described lawyers as “abus[ing] and exploit[ing] our laws”, Prime Minister Boris Johnson claimed that lawyers were “effectively abetting the work of the criminal gangs” ( Sky News 2022a), and Prime Minister Rishi Sunak (2023) described lawyers as “propping up a system of exploitation that profits from getting people to the UK illegally”. Lawyers repeatedly expressed concern that hostile rhetoric was endangering their personal safety, with lawyers and law firms targeted by far-right violence (Burrell 2023; Law Society 2024). In particular, the Immigration Law Practitioners Association (“ILPA”) was critical of how, “in recent years, senior politicians and a number of media outlets have fostered a climate of hostility towards immigration practitioners by attacking the legitimacy of immigration lawyers exercising their proper function in our democracy” (ILPA 2023b: 1). ILPA (2023b: 8) warned that hostile political rhetoric “pose[d] a serious threat to our justice system”, with political attacks on immigration lawyers “capable of undermining [lawyers’] ability to provide independent and equal access to justice, and of resulting in real and direct threats to their physical safety”.
Amidst this broader context, the number of people in the UK who were awaiting an initial decision on their asylum claim was increasing. By the end of 2022, the UK had an “asylum backlog” of approximately 161,000 people (Home Office 2023b). Facing growing criticisms of the Government’s handling of irregular migration, in December 2022 Sunak pledged that he would clear the asylum backlog by the end of 2023 (Sunak 2022; Syal 2022c). Among a number of measures implemented to facilitate this goal, on 23 February 2023 the Home Office (2023d) announced the introduction of the “streamlined asylum process”. Under the streamlined asylum process, people from countries with high asylum grant rates were given 20 days to complete a questionnaire. Home Office decision-makers were able to grant protection on the basis of the questionnaire and without the need for an interview, enabling “accurate and high quality” decisions to be made “as quickly as possible” (Home Office 2023e: 4).
Given the known physical and psychological harms of lengthy asylum processes (Burnett and Ndovi 2018; Van Eggermont Arwidson et al. 2022; Bhatia and Canning 2021), a policy ostensibly designed to reduce the time spent waiting for an asylum decision would appear to be a positive development. And yet, this article argues that the streamlined asylum process was a continuation of both the Government’s exclusionary approach towards people seeking asylum and its hostility towards immigration lawyers. The streamlined asylum process was designed to both downplay the importance of legal advice and make it practically difficult for a person to access legal advice to complete their questionnaire. These measures aimed to enhance the speed of the process, allowing the Government to make quick decisions in pursuit of its promise to clear the asylum backlog, but simultaneously undermined an important procedural protection, increasing the risk that a person would be erroneously denied protection. The decision to remove legal protections to prioritize speed reflected the Government’s framing of law and lawyers as obstacles to its migration control efforts and aligned with the state’s operative policy of exclusion. As such, this article argues that the streamlined asylum process was exclusionary by design.
First, this article provides an overview of the harms experienced by people seeking asylum, exploring the role that immigration laws and policies play in facilitating exclusion and the growing trend of accelerated asylum processes. Second, this article outlines its methodology—a thematic analysis of a range of sources documenting the operation of the streamlined asylum process, including interviews with three immigration lawyers and one employee of a charitable organization. Third, this article demonstrates how the streamlined asylum process functioned to limit the role of lawyers: first, by ostensibly rendering legal advice unnecessary and second, by making it difficult for a person to obtain legal advice. Fourth, this article argues that, by minimizing opportunities for legal assistance in the streamlined asylum process, the process became more likely to produce incorrect decisions to deny a person’s asylum claim. Thus, the process was exclusionary by design. In conclusion, this article reflects on the relationship between law, lawyers, and state harms. Ultimately, the streamlined asylum process demonstrates both the important and unique position that lawyers occupy within civil society as actors who are capable of working within and using a state’s own legal systems to oppose harmful state actions, and the ways that governments may use laws and legal processes to punish civil society actors and attempt to curtail their efforts at resisting state harms.
Conceptualizing States’ Migration-Related Harms
People seeking asylum encounter a range of harms on their journeys to safety. The International Organization for Migration (2024) estimates that, since 2014, over 68,000 people have died while travelling to another country. On their journeys, people are exposed to a range of hazardous situations: harsh environmental conditions, unsafe methods of transportation, and physical and sexual violence at the hands of state agents, smugglers and traffickers, and other migrants (see, e.g. Schindel 2022; Dempsey 2020). After reaching a country where they can apply for asylum, migrants are vulnerable to further harms while awaiting a decision on their protection claims. People seeking asylum are often made dependent on the state for accommodation, everyday necessities, and financial support. When the state fails to provide adequate support—for example, by housing people in inappropriate or substandard accommodation—this can have serious detrimental impacts on a person’s physical and psychological health and wellbeing (Hirschler 2021; Filges, Mongomery, and Kastrup 2018). Such dependency on the state can also strip a person of their autonomy, having a dehumanizing and degrading effect (Canning 2017; Canning 2020). Legal processes are a further source of harm. The slowness of asylum systems can cause despair and chronic stress (Meier and Donà 2021: 41), while accelerated processes with rapid, seemingly impossible deadlines can increase anxiety and prevent people from being able to access necessary support (Griffiths 2014: 1999–2000). A growing body of research is documenting the active role that states play in inflicting these harms on people seeking asylum. Rather than viewing these harms as the accidental or unintended byproducts of border management, this research argues that states’ migration policies are harmful “by design” (Canning 2019; Mann 2021; Van Kooy and Hirsch 2022; Wilson et al. 2023).
Criminologists have long recognized that states have the capacity to inflict harm on a widespread scale (Green and Ward 2004: 1). Such harms will be considered “state harms”, sociologically attributable to the state, when they align with and serve the operative goals of the state, regardless of whether or not those goals are officially and publicly acknowledged by the state (Green and Ward 2004: 6). State harms can be inflicted directly by an individual who is acting within their official role with the help, encouragement and support of the state, or indirectly through the operation of bureaucratic systems and structures which produce harmful outcomes (Ermann and Lundman 2002). Harms may also be perpetrated by omission, when states have the capacity to take action but fail to avert avoidable, harmful outcomes (Kauzlarich, Mullins, and Matthews 2003; Canning 2017: 65). The law is an important tool enabling the perpetration of state harms. Through law, states can inflict, legitimize, and normalize violence, deny wrongdoing, and avoid responsibility for harms (Hodgson 2024: 155).
Many Western states have adopted immigration laws and policies that enable the entry of some people while preventing the entry of others (Wonders 2006). Among Western states, immigration policies tend to prioritize migrants who are perceived as having the ability to contribute productively to the economy through labour, tourism, or as students (Aas 2013: 29). Concurrently, explicitly, or implicitly, immigration is encouraged from migrants who are viewed as being readily assimilable and posing no challenge to the dominant language, culture, or religion (Bowling 2013: 301). People seeking asylum are frequently perceived as falling outside of these categories, rendering them undesirable to the West (Dauvergne 2008: 18). As such, many states have implemented policies designed to deter people seeking asylum from entering their territories. While Western states may proclaim that their policies of externalization and deterrence are humanitarian in nature and work to “save lives at sea” (Little and Vaughan-Williams 2017), these policies are embedded in and reflect exclusionary and punitive logics. As such, the harms produced by states’ migration policies can be understood, not as accidental or unintended, but rather, as necessary design elements to facilitate states’ operative goals of deterrence and exclusion.
Asylum seekers are not the only people targeted by states as they seek to prevent irregular migration. States also use their laws to punish individuals and organizations acting in solidarity with people seeking asylum. At Europe’s borders, states have criminalized humanitarian activities, prosecuting civil society actors engaged in search and rescue activities for aiding and abetting illegal immigration (Cusumano and Villa 2021; Fekete 2018). States have also introduced prohibitive regulatory frameworks and restricted avenues of funding in order to curtail the ability of civil society organizations to perform search and rescue work (Carrera, Allsopp, and Vosyliūtė 2018: 260). The targeting of civil society has flow-on effects for people seeking asylum. By hindering activities aimed at reducing the harms experienced by people seeking asylum, states make migratory journeys more difficult and dangerous.
When a person reaches a state’s territory and claims asylum, the principle of non-refoulement, contained in Article 33 of the Refugee Convention and other international instruments, prevents the state from returning that person to a country where they would be at risk of persecution. Partly as a consequence of this protection, states have adopted procedures to enable the determination of a person’s refugee status or other protection needs. However, the Refugee Convention gives limited guidance as to the process through which a state should ascertain whether or not a person is a refugee. Instead, a state is given a large amount of discretion “to establish the procedure that it considers the most appropriate, in conformity with its particular constitutional and administrative structure” (UNHCR 1977).
Increasingly, states appear to be adopting processes that involve “accelerating”, “fast-tracking”, or “streamlining” refugee status determination (Berhard and Kaufmann 2018; Ghezelbash 2021). Such processes, which can be oriented towards inclusion (quicker decisions to grant asylum) or exclusion (quicker decisions to refuse protection), support states’ migration control objectives by allowing states to more quickly identify and remove people who, according to the state, are not in need of protection, while simultaneously enabling states to assert the compliance of their procedures with international law (Ghezelbash 2021). In order to produce quicker decisions, accelerated processes may involve measures such as the prioritization of particular cohorts of people whose asylum claims are able to be processed more expeditiously; the imposition of strict time limits, for example, mandating short timeframes for a person to file their application for protection; the removal of procedural safeguards to expedite processes, such as limiting access to legal advice or the use of face-to-face interviews by decision-makers; and limitations on a person’s ability to appeal or request review of a decision not to grant protection (Cwerner 2004; Ghezelbash 2021). While well-designed accelerated processes can be beneficial in producing more efficient asylum systems and reducing the time people spend waiting for a decision on their protection claim (Ghezelbash and Hruschka 2024), poorly designed processes that sacrifice procedural safeguards in the name of efficiency put people at risk of being erroneously denied protection (McDonald and O’Sullivan 2018). Ironically, despite many accelerated processes removing procedural protections to enable quicker decision-making (Oakley 2007), emerging research suggests that fairness enhances efficiency (Ghezelbash and Hruschka 2024). That is, a fair process that provides people seeking asylum with support, including access to lawyers and interpreters, is more likely to be efficient and cost-effective (Berhard and Kaufmann 2018; Ghezelbash and Hruschka 2024).
Methodology
The aim of this research is to generate a greater understanding of the operation and impacts of the streamlined asylum process. In particular, this article investigates the impact of the streamlined asylum process on people’s ability to present their case for asylum and explores whether and to what extent the streamlined asylum process inflicted harms on people seeking asylum and their legal representatives. To answer these questions, this article conducts a thematic analysis of primary and secondary sources. Recognizing the importance of data “from below” in documenting state harms (Lasslett 2012), the dataset for this research includes a range of publicly available sources produced by civil society actors, such as blog posts, media articles and open letters. Supplementing these sources, four interviews were conducted with a target convenience sample of three immigration lawyers 1 and one employee of a charitable organization working with people in the streamlined asylum process. Ethics approval for this research was granted by the University of Nottingham School of Law Research Ethics Committee.
Attempts were made to obtain information about the streamlined asylum process through a series of Freedom of Information requests to the Home Office. Freedom of Information requests are a process through which the state can grant access to its data. However, as a corollary of this, Freedom of Information procedures can also be used by the state to control, constrain and prevent access to data (see, e.g. Kingston, Elliott, and Thomas 2019). For this research, requests were made for statistical information including the number of people who were sent a questionnaire through the streamlined asylum process and the number of people in the streamlined asylum process whose application for protection was refused. The Home Office declined to provide this information, advising that the request exceeded the Freedom of Information cost limit because “[w]e do not capture the level of information required to address the points raised in your request in a readily reportable format; therefore, to extract this data, we would need to investigate each application separately, and study all relative case notes made within” (Home Office 2023c). Statistics and data are not neutral; both the act of counting and failing to count can serve a state’s political agendas (Weber and Pickering 2011: 70). In this case, by failing to record information about the streamlined asylum process in a readily reportable manner, the Government prevented external oversight and scrutiny of its process. Interestingly, some of the data that could not be provided directly to this research was subsequently obtained and published by the Independent Chief Inspector of Borders and Immigration, enabling it to be included in this article’s analysis.
The sources collected by this study were analyzed through a thematic analysis (Braun and Clarke 2006). Data were coded in Nvivo, with codes inductively generated as new themes were identified. At the conclusion of the coding process, the recurrence of themes across multiple sources signalled that data saturation had been achieved.
The Streamlined Asylum Process
On 23 February 2023, the streamlined asylum process was introduced to help address the UK’s asylum backlog (Home Office 2023d). The process applied to people with “manifestly well-founded claims awaiting an initial asylum decision” (Home Office 2023e: 4). Initially, the process applied to people who had arrived in the UK prior to 28 June 2022 who were nationals of Afghanistan, Eritrea, Libya, Syria, and Yemen. Subsequently, the process was expanded to include people who had arrived in the UK and claimed asylum prior to 7 March 2023 and to include Sudan as a sixth nationality group (Home Office 2023e: 3, 7). The streamlined asylum policy was ostensibly geared towards enabling “accurate and high quality decisions” to be made “as quickly as possible” (Home Office 2023e: 4). The logic underpinning the process appeared to be that, given that these people were highly likely to have strong grounds for protection, a process with fewer procedural hurdles would enable positive asylum decisions to be made more quickly.
The streamlined asylum process was designed to minimize the involvement of lawyers. Under the process, people were given 20 days to complete a questionnaire providing information about their asylum claim. The Government was keen to emphasize that this questionnaire could be completed without legal advice. In the letter accompanying the questionnaire, recipients were told that a lawyer could complete the form for them. However, they were also advised, “If you do not have a legal representative, you can complete the questionnaire yourself. You do not need to have any knowledge of the asylum system; we only need you to explain why you are claiming asylum” (Home Office 2023f). Jenrick (2023b) confirmed that the Government “consider[ed] that the questionnaire can be completed without legal advice”.
However, in contrast to the Government’s assurances that a person could complete the questionnaire themselves, the questionnaire designed for the streamlined asylum process paradoxically contained both a confusing amount of information and insufficient guidance on how the questionnaire should be completed. The questionnaire was prefaced by a cover letter and five pages of instructions which contained a list of over 40 questions that people were asked to address. Meanwhile, the questionnaire itself, after asking about a person’s family members, addresses in their country of origin, and criminality or security issues, simply instructed the applicant to “provide the details of your asylum claim in the space provided below, using the questions above as a guide” (Home Office 2023f). The complicated design of the questionnaire meant that a person without legal advice was likely to struggle to understand what information should be included on their form:
The fact that the forms are just open boxes rather than giving subsections for people to cover is unhelpful because people will have to guess, what’s the Home Office looking for? (Participant 4; see further ILPA 2023c; Greater Manchester Immigration Aid Unit 2023)
Further, the questionnaire was provided in English and needed to be completed in English, complicating peoples’ ability to complete the form themselves. The questionnaire advised that “If you do not speak, write or understand English, you can use online translation tools … A friend who does understand English can also assist you to explain why you are claiming asylum” (Home Office 2023f). Jenrick (2023b) similarly suggested that people who did not speak English could seek support “through community links such as charity organisations, non-governmental organisations, friends, family, online translation tools and other networks”. However, the Office of the Immigration Services Commissioner (2023) warned that unregistered individuals should confine themselves to assisting with “language issues” and “must not stray into giving immigration or asylum advice”. Some charities were so concerned about the risk and consequences of unintentionally giving unauthorized advice that they decided against providing translation assistance to people wanting to complete the questionnaire (Participant 2). As such, people with poor English language skills were likely to face additional difficulties in fully communicating their need for protection:
But saying that you have to send this in English … it’s not helpful when the majority of our clients are talking about something complex and don’t have fluent English. I think lots of our clients do speak some English, but the nature of what they’re having to say, it’s so complicated that their English is not helpful. (Participant 2; see further ILPA 2023c)
The Government failed to take advantage of opportunities to improve the design of the questionnaire. The Government had previously consulted with the refugee sector about the design of a new guided statement, written in simple language, to replace the preliminary information questionnaire. However, the lessons learned from this process were not applied to the design of the streamlined asylum processing questionnaire (ILPA 2023c). Further, senior managers in the Home Office received a “clear ministerial direction” not to consult with the refugee sector prior to the questionnaire’s introduction (Neal 2024: [7.20]). When the refugee sector raised concerns about the lack of consultation prior to the introduction of the streamlined asylum process, Jenrick (2023b) explained that the process needed to be established “at pace” in order to achieve the Prime Minister’s commitment to clear the asylum backlog. However, the Government’s decision not to consult with the refugee sector likely also reflected its position that lawyers were obstacles preventing the Government from achieving its migration policy goals.
Alongside its efforts to downplay the importance of legal advice, the Government also made it difficult for a person in the process to obtain legal advice. People were instructed that they had 20 days to return their questionnaire; if they did not return their questionnaire within the required timeframe, their asylum claim could be deemed to be withdrawn (Home Office 2023e: 12). However, for many people, capacity issues within the immigration law sector meant that it was simply not possible to obtain legal advice within a 20-day period. In 2022, a comprehensive report found that “there is not enough free or low-cost immigration, nationality and asylum advice available” throughout the UK (Wilding 2022: 12). The high demand for immigration legal aid services throughout the UK meant that, even prior to the streamlined asylum process, lawyers were consistently at or beyond capacity, producing long waits for people seeking legal assistance to claim asylum.
The streamlined asylum process exacerbated these existing capacity issues. The fact that the streamlined asylum process was introduced without prior consultation or warning meant that lawyers were not able to prepare for the sudden influx of clients who had been given 20 days to complete their questionnaire:
I’m one of two caseworkers in a small firm. We didn’t really have any notice [the questionnaires] were coming out. I will generally have my calendar full for two weeks in advance. Then we suddenly receive all these questionnaires with the 20-day deadline. And that was quite stressful. How do you suddenly fit that in an already full calendar? (Participant 1)
Many lawyers who were already operating beyond capacity were suddenly stretched even further by the streamlined asylum process. One lawyer explained that the streamlined asylum process meant “working outside your contracted hours because you’re terrified that your clients are going have their claims treated as withdrawn, not taking on new work, and not providing the level of client care that you would otherwise want to provide to your clients” (Participant 3). Another lawyer disclosed that they had “definitely worked a lot of overtime” in order to complete their clients’ questionnaires within the deadline (Participant 1).
Capacity issues in the legal sector were exacerbated even further by the rigid and inefficient approach adopted by the Home Office towards the questionnaires. Questionnaires were sent to all eligible people without any consideration of the existing information held by the Home Office (ILPA 2023a: [27]). As such, some people who received questionnaires had already provided the Home Office with a substantial amount of information regarding their asylum claim (ILPA 2023a: [24]). This placed their lawyers in the position of having to provide the same information again to the Home Office, duplicating work which had already been done, or else risk the withdrawal of their client’s asylum claim. One lawyer explained that as she had already submitted her client’s preliminary information questionnaire, statement, and documents to the Home Office:
I took the approach of well, I can just say “see attached witness statement”, “see previously submitted evidence”. Then the Home Office responded with “no, you have to answer every question in the questionnaire”. And you’re thinking, well, we’ve already given this information. I think I then ended up having to go back and amend quite a few questionnaires where I just took the client statement and copied and pasted it into the questions. It was a waste of my time, a waste of the client’s time … We’d given all this evidence a year ago, and they were asking us to answer these stupid questions. (Participant 1)
Despite lawyers doing their best to meet the increased demand for legal advice, capacity issues in the sector meant that many people who had received a questionnaire struggled to secure a lawyer:
There’s one particular client that I last saw him last week and he’s come in a number of times. He speaks relatively good English and he’s been contacting solicitors constantly but can’t get a solicitor. We’ve now applied for two extensions for him, but he’s told me every time he’s come in, “I don’t sleep at night, I can’t sleep because I’m so worried about this”. I’ve tried to reassure him we’ll keep applying for these extensions, but it’s still just another deadline and I think he’s kind of lost hope that he is going to get a solicitor. He’s been through all this trauma to get here and now it’s like he just feels alone. (Participant 2)
People were given the option to request extensions to the 20-day deadline (Home Office 2023e: 12). However, both asylum seekers and lawyers expressed significant anxiety at the possibility that a request for an extension would be denied:
How long can we keep asking for an extension? At the moment, we haven’t tried a third extension for anyone, but we’re not sure what the outcome will be if we do keep asking again. It seems to be that the first extension has been 20 days and the second one has been 10, which is obviously then a bit worrying because what’s going to happen the next time? Neither of those are in any way a long enough scale. If you haven’t found a solicitor by now, you’re not going to by then. So yeah, that’s difficult. (Participant 2)
Ultimately, the existence of the deadline put people under pressure to complete the questionnaire themselves:
A couple of people, even though we’ve advised them against it, have just decided to submit it themselves because they’d rather just get it sent in. I think the issue is the deadline really. If people knew that they had longer to complete this and they could do it with a solicitor, I think there would be less worry and people wouldn’t be sending in things that aren’t accurate. We are encouraging people don’t send it in by itself unless you know exactly what you’re doing. But obviously, we can’t stop people. And I think there’s just a panic there. (Participant 2)
Exclusionary by Design
Legal advice is correlated with better asylum outcomes; a person is more likely to be granted asylum if they are assisted by a lawyer in preparing their case (Schoenholtz and Jacobs 2002). In particular, legal advice helps a person to identify and communicate the legally relevant aspects of their story to a decision-maker. As such, by downplaying the importance of legal advice in the streamlined asylum process and making it practically difficult for a person to access legal advice to complete their questionnaire, the Government undermined an important procedural protection which would operate to prevent exclusions.
As a consequence of the manner in which the streamlined asylum process was implemented, many people struggled to complete their form to the best possible standard. According to the National Audit Office (2023: [3.11]), Home Office staff expressed concerns about the poor quality of completed questionnaires. In May 2023, three months after the streamlined asylum process was introduced, The Times reported that only 10 per cent of forms that had been returned to the Home Office were “properly completed” (Dathan 2023). These reports seemingly confirm that, contrary to the Government’s assertions, many people in the streamlined asylum process struggled to complete the questionnaire.
A poorly completed questionnaire would not automatically result in a person’s asylum claim being rejected. Applicants were advised: “What you provide us with doesn’t need to be perfect: we can always ask you for further details either by writing to you or ringing you to collect further information, or by inviting you to an interview” (Home Office 2023f). A person needed to be interviewed prior to any decision to reject their asylum claim (Home Office 2023e: 17); as such, interviews seemingly existed as a safeguard for people who were unable to fully articulate their need for protection in their asylum questionnaire. However, the key risk of a poorly completed questionnaire was not that a person’s asylum claim would be automatically rejected, but rather, that poor or inconsistent questionnaire answers would subsequently be used as evidence that a person’s claim was not credible. Credibility is a key factor that decision makers consider in determining whether or not to grant asylum (Kagan 2003; Millbank 2009). One element of credibility is internal consistency; the Home Office (2023a: 48) advises decision-makers that a person’s “oral history, written statements and any personal documents relating to the material facts of the claim should be coherent and consistent”. When preparing an asylum application, lawyers pay significant attention to ensuring a person’s account is consistent and explaining any inconsistencies. As such, a person completing a questionnaire without legal advice would be at greater risk of making statements which might reflect poorly on their credibility and thus be used to justify rejecting their claim for asylum:
I think one of the worries that we have as lawyers is that everything’s based on credibility or like 90% of decisions are based on credibility. So if a client fills it in themselves, but English isn’t their first language, maybe a friend’s done it, or they’ve used Google Translate, and they’ve put something in that isn’t correct, then how do we know that in the future the Home Office won’t use that against them? I had clients say to me, “I’m really anxious. I want to get this sent off. Can I do it myself?” And we always said no, we want to do it with you. We want to make sure that it fits your screening interview and it fits the statement that we’ve already sent. (Participant 1)
The stated aims of the streamlined asylum process were to make “accurate and high quality decisions as quickly as possible” (Home Office 2023d: 4). However, in practice, the process prioritized quick decisions at the cost of accurate decisions. Due to the lack of capacity in the immigration and asylum legal aid sector—a problem caused by Government failures to appropriately fund and support legal aid work (O’Nions 2021)—people would be slow to return their questionnaire if they decided to wait for legal representation. Having people complete their questionnaire without the assistance of a lawyer would circumvent this issue, ostensibly enabling quicker decisions—but with the risk that some of those decisions would be erroneous decisions to reject a person’s application for protection.
The Government’s attempts to minimize legal advice within the streamlined asylum process aligned with the state’s broader pattern of hostility towards lawyers. Government ministers had consistently suggested that lawyers were protecting people with unmeritorious asylum claims and preventing the state from removing people with no legal right to be in the UK. Thus, the sidelining of lawyers in the streamlined asylum process can be seen as an attempt to circumvent a procedural protection which would operate to frustrate the Government’s migration control efforts. The anti-lawyer logic of the streamlined asylum process was effectively an extension of Government attacks on the profession:
When they’re sending out questionnaires that say you can do this with your friend, or you can do this on your own, then it really discredits what we do … But it’s not surprising and it feels like it’s very much in line with the political rhetoric at the minute about immigration lawyers … It all fits in with how we’re being painted and the image that politicians want to paint of us. (Participant 1)
The streamlined asylum policy was introduced at a time when the UK Government was intensely hostile to people who had crossed the English Channel in small boats to seek asylum. The Government’s operative goal with respect to irregular migration more broadly was to make it as difficult as possible for people to apply for asylum and remain in the UK. The sidelining of lawyers in the streamlined asylum process supported this operative goal. By downplaying the importance of legal advice and making it practically difficult for a person to access legal advice to complete their questionnaire, the Government actively created a process that served the state’s explicit goal of fast decision-making to clear the asylum backlog while also contributing to its operative goal of exclusion. Therefore, despite purporting to be a policy of inclusion, the streamlined asylum process was ultimately exclusionary by design.
Conclusion: Law, Lawyers, and State Harms
The streamlined asylum process is an example of how states can use their laws and legal systems to perpetrate harms. States have considerable power to create laws and legal processes that facilitate their own agendas. The exclusionary orientation of the streamlined asylum process was facilitated through a number of cumulative actions—designing a questionnaire that ignored best practice and was overly complex; advising people that they did not need a lawyer to complete the questionnaire; eroding the capacity of the legal aid sector through years of inadequate funding; exacerbating the capacity issues of the sector by adopting policies that required duplication of work in the streamlined asylum process; and imposing a deadline that operated to both make it practically difficult for a person to access a lawyer in the timeframe provided and pressurize people to complete the questionnaire themselves. The streamlined asylum process did not merely produce exclusionary outcomes—it was exclusionary by design.
The streamlined asylum process also demonstrates the important role that lawyers can play in resisting harmful state policies. While states have considerable power to make laws and legal processes that facilitate their own agendas, lawyers have the power to work subvert these laws and processes to serve different ends. Thus, lawyers occupy a distinctive position within civil society, as actors who are capable of working within a state’s own legal system to oppose state harms. In the context of migration and asylum, lawyers use legal tools to fight for their clients’ inclusion. The streamlined asylum process demonstrates the importance of lawyers in facilitating positive asylum decisions; lawyers were a vital resource to help a person to navigate the complex and exclusionary process created by the state. Therefore, in the context of state harms, lawyers can be conceptualized as disruptors, capable of using the state’s own tools and systems against it in order to frustrate the state’s agenda and prevent the infliction of harm.
Such resistance exposes lawyers to attack. The streamlined asylum process was not just harmful to people seeking asylum; by launching the streamlined asylum process with little warning, the Government also inflicted harm on the legal sector. The streamlined asylum process significantly increased the demand for lawyers in a sector that was already operating beyond capacity. This increased workload caused stress and anxiety, exacerbating the factors that lead practitioners to stop doing immigration legal aid work (Hynes 2023), and thus potentially contributing to further erosion in the capacity of the sector. As such, similarly to actions taken by states throughout Europe to punish individuals and organizations acting in solidarity with migrants and limit their ability to assist people seeking asylum, the streamlined asylum process can be seen as forming part of a broader attack on the legal sector. Ultimately, the streamlined asylum process demonstrates how legal systems and bureaucratic processes can be weaponized, not only against people seeking asylum, but also against those who work within and alongside those systems to support people seeking asylum.
Multiple jurisdictions around the world use accelerated processes to facilitate quick asylum decision-making (Ghezelbash 2021). Accelerated processes are not inherently harmful; in many cases, well-designed processes will have beneficial effects by reducing the harms associated with lengthy waiting periods. However, just as lengthy asylum processes can be harmful, accelerated processes can also cause harm. When governments propose to introduce quicker decision-making processes to benefit people seeking asylum, it is important to consider how this speed will be achieved and at what cost. In an era when Western governments are increasingly disguising their hostile migration policies in humanitarian rhetoric, the streamlined asylum process demonstrates how a seemingly positive legal process can be co-opted to serve the migration control agenda of the state.